Farley v. Lincoln Benefit Life Co. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Deana Farley, No. 2:20-cv-02485-KJM-DB 12 Plaintiff, ORDER 13 v. Lincoln Benefit Life Company, 1S Defendant. 16 17 Plaintiff Deana Farley moves for the court’s approval of limited class notice. For the 18 | reasons below, the court grants the motion. 19 | IT. BACKGROUND 20 This case involves the termination of life insurance policies. The court has discussed the 21 | background of the case in a prior order and incorporates that discussion by reference here. See 22 | Prior Order, ECF No. 77. In relevant part, the court previously granted plaintiff Deana Farley’s 23 | motion for class certification under Federal Rule of Civil Procedure Rule 23(b)(2) and denied her 24 | ///// 25 | ///I/ 1 motion for class certification under Rule 23(b)(3). Id. at 16.1 The court defined the approved 2 class as follows: 3 All owners, or beneficiaries upon a death of the insured, of 4 Defendant’s individual life insurance policies issued in California 5 before 2013 that Defendant lapsed or terminated for the non-payment 6 of premium in or after 2013 without first providing all the notices, 7 grace periods, and offers of designation required by Insurance Code 8 Sections 10113.71 and 10113.72. 9 Id. In that order, the court found plaintiff could not be an adequate representative for a putative 10 damages subclass and declined to certify such a class. Id. at 15. The court, however, left open 11 the possibility that plaintiff could add a new class representative who could adequately represent 12 this subclass. See id. Plaintiff now moves to facilitate limited class notice. Mot., ECF No. 92. 13 Defendant opposes, Opp’n, ECF No. 95, and plaintiff has replied, Reply, ECF No. 102. The 14 court submitted the matter without a hearing. Min. Order, ECF No. 107. 15 II. LEGAL STANDARD 16 Under Federal Rule of Civil Procedure 23(d)(1)(B), the court may require notice of “any 17 step in the action” or of “the members’ opportunity to . . . intervene [or] otherwise come into the 18 action” to “protect class members and fairly conduct the action[.]” Fed. R. Civ. P. 23. Thus, 19 district courts have broad authority to require notice “when needed for the protection of class 20 members or for the fair conduct of the action.” O’Connor v. Uber Techs., Inc., No. 13-03826, 21 2017 WL 3782101, at *5 (N.D. Cal. Aug. 31, 2017) (quoting Manual for Complex Litigation 22 § 21.31 (4th ed.)); see also Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981) (“[A] district court 23 has both the duty and the broad authority to exercise control over a class action and to enter 24 appropriate orders governing the conduct of counsel and parties.”). 25 III. ANALYSIS 26 Plaintiff moves to facilitate limited class notice under Rule 23(d)(1)(B) to inform class 27 members of the court’s order granting class certification under Rule 23(b)(2) and denying class 1 When citing page numbers on filings, the court uses the pagination applied by the CM/ECF system. 1 certification under Rule 23(b)(3). Plaintiff argues the court’s decision was an important step in 2 this case and class members should be informed of their options—for example, the option to 3 intervene. Mot. at 12–14. Defendant opposes and argues Rule 23(d)(1)(B) “does not provide for 4 notice to members of a putative class or when the court denied certification.” Opp’n at 7 5 (emphases in original). 6 The court finds plaintiff’s requested class notice is warranted in this case. Plaintiff is not 7 seeking class notice for members of a putative class; rather, notice would be for members of the 8 class the court has already certified. Contra Opp’n at 7, 11. As explained above, this court found 9 plaintiff was not an adequate class representative for a putative subclass of those who may be 10 separately entitled to monetary relief under Rule 23(b)(3). The court, however, left open the 11 possibility of adding a new class representative who could adequately represent this other 12 subclass, and denied the motion for class certification under Rule 23(b)(3), without prejudice. 13 See Prior Order at 15. 14 Here, the absent class members may obtain declaratory relief; however, some absent class 15 members who may otherwise be entitled to monetary relief would not be able to seek such relief 16 on a class-wide basis under Rule 23(b)(3) given that the court has declined to certify a subclass 17 under that section of the rule. Accordingly, to protect the interests of those absent class members, 18 the court finds a limited class notice informing class members of the court’s order and of the 19 members’ opportunity to intervene is appropriate here. See In re Gypsum Antitrust Cases, 20 565 F.2d 1123, 1127 (9th Cir. 1977) (“[T]he trial court has an obligation to those not before it to 21 ensure that they are apprised of proceedings that may finally affect them[.]”). 22 For example, there may be class members who may want to intervene and protect their 23 right to seek monetary relief through this action. Cf. Reed v. Sci. Games Corp., No. 18-0565, 24 2021 WL 2473930, at *5 (W.D. Wash. June 17, 2021) (“Rule [23] authorizes the control of 25 communications to absent class members in order ‘to protect class members and fairly conduct 26 the action’ with particular attention to safeguarding the class’ opportunity to participate in the 27 action.”). And although this court does not reach this question now, as plaintiff argues, there may 28 be a risk of a potential running of the statute of limitations as to any damages claim. See Mot. at 1 14; but see Opp’n at 9 (arguing statute of limitations would be tolled by pendency of another case 2 before this court). Thus, not informing the absent class members of this court’s prior order may 3 be prejudicial to them. 4 In general, it is the representative plaintiff who must perform the tasks necessary to send 5 out class notices. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356 (1978). However, in 6 certain instances where “the defendant may be able to perform a necessary task with less 7 difficulty or expense than could the representative plaintiff,” the court has discretion to order the 8 defendant to perform that task. Id. For example, the court may “require a defendant’s 9 cooperation in identifying the class members to whom notice must be sent.” Id. at 355. Here, 10 defendant unilaterally has the information necessary to contact absent class members. Although 11 defendant argues it would be impossible to identify the class members, Opp’n at 12–13, it has 12 produced spreadsheets that include information on “known deaths on class policies,” indicating 13 otherwise, Mot. at 12; Reply at 8. Accordingly, the court finds defendant should bear the burden 14 in terms of time and cost of identifying class members while plaintiff, who requests the limited 15 class notice, shall bear the burden in time and cost of sending out the class notices. 16 IV. CONCLUSION 17 For the reasons above, the court grants plaintiff’s motion for limited class notice. The 18 parties are directed to meet and confer and submit a proposed class notice or, if they cannot 19 agree, competing class notices within 21 days. Defendant shall cooperate in identifying the class 20 members to whom notice must be sent. 21 Additionally, the court adopts in part the parties’ proposed schedule for the next stage of 22 the case. See Joint Status Report, ECF No. 111. Plaintiff shall move to amend the scheduling 23 order to allow joinder of parties within 60 days of the filed date of this order, or 60 days from the 24 expiration of any new notice period and/or defendant’s production of class contact information to 25 plaintiff, whichever is latest. This order resolves ECF No. 92. 26 IT IS SO ORDERED. 27 DATED: October 31, 2023.